J-S68030-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JEROME JOHNSON, :
:
Appellant : No. 2919 EDA 2014
Appeal from the Judgment of Sentence September 24, 2014,
Court of Common Pleas, Philadelphia County,
Criminal Division at No. CP-51-CR-0011983-2012
BEFORE: BENDER, P.J.E., DONOHUE and MUNDY, JJ.
MEMORANDUM BY DONOHUE, J.: FILED NOVEMBER 13, 2015
Jerome Johnson (“Johnson”) appeals from the judgment of sentence
entered following his convictions of aggravated indecent assault, simple
assault, robbery and possessing instruments of crime.1 We affirm.
In the early morning of August 2, 2012, Tiona Hughes (“Hughes”) and
her boyfriend, Mason Ferris (“Ferris”), were at a private residence where
Ferris was gambling. Johnson, who had known Ferris for a couple of years,
was also at the residence. Ferris and Hughes left the residence on foot at
approximately 4:00 a.m. When Johnson approached in them in a vehicle,
Ferris asked Johnson to give them a ride and Johnson agreed. As they were
driving, Johnson pulled over, pointed a gun at Ferris and demanded all of his
money. After Ferris complied, Johnson turned the gun on Hughes and made
1
18 Pa.C.S.A. §§ 3125(a), 2701, 3701, 907.
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the same demand. While doing so, he stuck his hand inside of her bra and
in her underwear, looking for hidden money. When his hand was inside of
Hughes’ underwear, Johnson put his finger into her vagina. Once Johnson
was satisfied that he had all of the victims’ money, he ordered Hughes and
Ferris to exit the vehicle and drove away. Hughes and Ferris immediately
called the police.
At the conclusion of a bench trial, Johnson was convicted of the four
offenses listed. The trial court sentenced him to an aggregate term of 40 to
120 months of incarceration, to be followed by five years of probation. This
appeal follows, in which Johnson presents the following three issues for our
review:
1. Whether the verdict was contrary to law[.]
2. Whether the [trial] [c]ourt abused its discretion in
denying [Johnson’s] motion for mistrial based on
prosecutorial misconduct[.]
3. Whether the [trial] court abused its discretion by
admitting the 911 call[.]
Johnson’s Brief at 8.
In his first issue, Johnson challenges the sufficiency of the evidence as
to his aggravated indecent assault and robbery convictions. See Johnson’s
Brief at 14-18. In his Pa.R.A.P. 1925(b) statement of matters complained of
on appeal (“Rule 1925(b) statement”), Johnson alleged that “the evidence
was insufficient … as to the charges of aggravated assault and simple
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assault. The evidence did not prove that [Johnson] did in fact touch the
complainant and they [sic] were never mentioned to the police by the
complainant.” Statement of Matters Complained of on Appeal, 3/17/15, ¶ 4.
Presently, Johnson argues that the evidence was insufficient to establish that
he penetrated Hughes’ vagina. Johnson’s Brief at 14-15. These are distinct
claims. It is axiomatic that failure to raise a claim in a Rule 1925(b)
statement results in waiver of that issue on appeal. Pa.R.A.P.
1925(b)(4)(vii); Commonwealth v. Jackson, 10 A.3d 341, 347 n.4 (Pa.
Super. 2010); see also Commonwealth v. Santiago, 980 A.2d 659, 666
n.6 (Pa. Super. 2009). (“[A] new and different theory of relief may not be
successfully advanced for the first time on appeal.”). Because Johnson did
not in include the issue he now presents in his Rule 1925(b) statement, he
has waived it.2
With regard to his robbery conviction, the only argument Johnson
presents challenges the trial court’s decision to accept Hughes’ testimony as
credible. Johnson’s Brief at 16.3 This argument is misplaced. A challenge
2
Even if we were not to find this issue waived, it would afford Johnson no
relief. Hughes testified at trial that Johnson unfastened her jeans, stuck his
hand in her underwear and digitally penetrated her vagina. N.T., 11/20/13,
at 19-21. This testimony is sufficient to support a finding that Johnson
penetrated her vagina. Commonwealth v. Filer, 846 A.2d 139, 141 (Pa.
Super. 2004) (“The uncorroborated testimony of a victim, if believed by the
trier of fact, is sufficient to convict a defendant[.]”).
3
Johnson points out inconsistencies in Hughes’ testimony and argues that
because of these inconsistencies, “the trial court erred when it relied solely
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to the credibility of witness testimony goes to the weight of the evidence
rather than the sufficiency of the evidence. Commonwealth v. Wilson,
825 A.2d 710, 713-14 (Pa. Super. 2003) (“A sufficiency of the evidence
review, however, does not include an assessment of the credibility of the
testimony offered by the Commonwealth. … Such a claim is more properly
characterized as a weight of the evidence challenge.”). Johnson has not
presented an argument relevant to the issues he has raised, and so it cannot
afford him relief.
Johnson’s next issue challenges the trial court’s denial of his motion for
a mistrial based upon the following alleged prosecutorial misconduct. Prior
to the start of trial, the parties were discussing a potential continuance and
the possibility of Hughes returning on another date. The prosecutor stated,
“I did speak to her. I spoke to her in the anteroom. Again, she got very
upset. … She is terrified.” Johnson’s Brief at 20 (quoting N.T., 11/19/13, at
6).4 Johnson argues that this statement provided grounds for a mistrial
because it “manipulated the perception of the crux of the Commonwealth’s
evidence.” Id. However, the record reveals that while Johnson objected to
these statements by the prosecutor, he did not request a mistrial. See N.T.,
11/19/13, at 6-7. The failure to request a mistrial at the time of the
on her testimony to find for [sic] all of the elements of robbery beyond a
reasonable doubt.” Johnson’s Brief at 16.
4
Johnson erroneously cites this statement as being made on November 20,
2013. Johnson’s Brief at 20.
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objectionable statements by a prosecutor results in waiver of that claim.
Commonwealth v. Brown, 359 A.2d 393, 396 (Pa. 1976).
Johnson’s final claim is waived for a similar reason. Johnson argues
that the trial court erred in admitting into evidence a recording of the 911
call Hughes and Ferris made on the night in question. Johnson’s Brief at 21.
The record reveals that Johnson did not object when the Commonwealth
sought to play the 911 tape. N.T., 11/20/13, at 24. “We have long held
that failure to raise a contemporaneous objection to the evidence at trial
waives that claim on appeal.” Commonwealth v. Tha, 64 A.3d 704, 713
(Pa. Super. 2013). Accordingly, Johnson has waived this issue as well. 5
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2015
5
We note that Johnson objected to the Commonwealth re-playing the 911
recording during its closing statement. N.T., 4/24/14, at 87. This belated
objection does not cure Johnson’s failure to object contemporaneously with
the Commonwealth’s attempt to use it during trial. Commonwealth v.
Foreman, 797 A.2d 1005, 1016 (Pa. Super. 2002) (“In the absence of an
appropriate objection made when the evidence is proffered at trial, the
issue is not preserved for appeal[.]” ) (emphasis added). Notably, Johnson
does not address whether he properly preserved this issue in his appellate
brief.
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